Examination of Witnesses (Question Numbers
380-399)
DR MALCOLM
JACK, MS
JACQY SHARPE,
MR MICHAEL
CARPENTER AND
MS VERONICA
DALY
9 NOVEMBER 2009
Q380 Ann Coffey: No, we are discussing
how the decision came to be made over a matter of privilege. That
is separate from looking at how the management structure and the
relationships in this place contributed to the decision that was
actually made in this particular instance, though presumably it
could be duplicated in various other decisions.
Dr Jack: I have heard what you
say. By the way, I hope I am not giving the impression that no
lessons have been learnt because lessons have been learnt and
the Speaker's protocol makes that pretty clear. What I was trying
to say really is that this place is unique in the sense that privilege
and indeed politics for that matter intervene into the running—
Q381 Ann Coffey: That is not unique.
You have that in every local authority in the land. Politicians
are used to working with professional officers in every local
authority in the land. I do not think the fact that Parliament
is the institution should be used as an excuse for not having
a proper management system.
Dr Jack: No, I absolutely agree
with you.
Q382 Ann Coffey: It appears to me
that to some extent this is how it has been used which is why
it has been so very difficult over the years to get anything established
in this place that has some degree of clarity about how it works.
Dr Jack: No, I would not disagree
with you of course.
Q383 Chairman: If Parliament is sui
generis, then is it not all the more necessary to ensure that
you build in procedures which allow for the transfer of information
and communication that Ann Coffey is talking about because of
the special nature of this place and in particular the intervention
of privilege?
Mr Carpenter: I would like to
draw your Committee's attention to the provision in the Speaker's
protocol, paragraph 5, which addresses this situation and the
problem in this case, though obviously you will have to hear from
the Serjeant. The protocol does say "No Officer or other
member of the staff of the House may undertake any duty of confidentiality
which has the purpose or effect of preventing or impeding communication
with these Officers". I submit that it is not so much a question
of the management structure: it is a question of the duty of confidence
that was assumed, that with hindsight should not have been imposed
and should not have been accepted.
Q384 Sir Malcolm Rifkind: Looking
to the future, can you advise me whether, if at some future situation
of this kind, if the Serjeant had a full discussion with the Speaker
and there were not confusions between the Serjeant and the Speaker,
which appears to have existed on this occasion, and the Speaker
had given consent in this way, do you believe it is acceptable
and wise for that to happen without the involvement of the Clerk
of the House and Speaker's Counsel?
Mr Carpenter: I am not sure whether
I am being asked for my legal opinion.
Q385 Sir Malcolm Rifkind: Maybe "wise"
is the wrong word. Do you think that is a proper procedure for
determining such important matters that the Clerk of the House
might not even be involved or informed or consulted as long as
the Serjeant at Arms has spoken directly to the Speaker?
Mr Carpenter: It would be an unfortunate
way of proceeding and I believe that the protocol serves to ensure
that sort of thing does not happen because it lays stress on the
number of people who must be brought into the loop, if I may put
it that way; so there is a collective discussion, so no-one is
operating within a cupboard of their own making.
Q386 Mr Henderson: It seems an obvious
question but I am not sure we have asked it. Before 16 November,
if you had been asked as an adviser whether consent should ever
be given for the search of a Member's office without a warrant,
would you have advised yes or no? Now, would you give the same
advice or have you formed a different view?
Dr Jack: No, I would have advised
that a warrant should be necessary in such a case and I would
follow now the provisions of the Speaker's protocol which also
requires a warrant in such a case.
Q387 Sir Malcolm Rifkind: One final
point, really just to give you an opportunity to comment because
I do not have a strong view on this myself. Lord Martin of Springburn
in his evidence was rather critical of the fact that in his view
over the weekend of Saturday 29 and Sunday 30 November you had
just one brief phone conversation and that you were not available
because you had gone overseas. I simply want to give you an opportunity,
if you so wish, to comment on that, whether that is a concern
you share.
Dr Jack: No, I am very happy to
answer that. I went away on Friday evening when these events were
over. I am always available on the weekend and I have had many
weekend conversations relating to the business of the House.
Q388 Chairman: May we come not to
the Sealed Knot but the sealed bag? Ms Sharpe and Ms Daly, you
were directly concerned in that. There was an occasion on 22 January
2009 when Kingsley Napley attended by agreement what was described
as a preliminary sift. As a result of that some 20 documents were
exempted. Can you tell us what criteria were used in order to
carry out the sift?
Ms Daly: First, there were three
occasions on which we looked at material.
Q389 Chairman: Can you tell us when
these were?
Ms Daly: Yes, on 22 January when
we looked at hard copy material which had been taken from the
office. On 30 March and on 2 April we looked at electronic material
which had been downloaded. So there were three occasions when
we inspected material taken from Damian Green's offices.
Q390 Chairman: Were the criteria
for carrying out the sift the same on all three of these occasions,
both the hard copy and the electronic material?
Ms Daly: Yes, they were.
Q391 Chairman: What were these?
Ms Daly: Before we were invited
to look at the material, there were quite a lot of communications
between both sides, the lawyers, the lawyers of the Metropolitan
Police and Damian Green's lawyers. It was simply that we go in
and look at what had been taken and form a preliminary view of
whether we thought it was privileged.
Q392 Chairman: Where was that material?
Where was it being kept?
Ms Daly: It was being kept in
New Scotland Yard. It was all under seal because Mr Green's lawyers
communicated to the police that he thought it was all privileged,
therefore that they could not unseal the bags until this matter
of privilege had been determined. This was why, having had the
resolution of the House on 8 December, when it was said that this
matter of privilege could not be considered in the House until
the police investigation was over or any criminal proceedings,
they said that perhaps officers of the House could come in and
look at it and form some sort of preliminary view of what they
thought about the material.
Q393 Ann Coffey: What sort of material
was it?
Ms Daly: I am a solicitor and
when we were doing this we were acting under duties of confidentiality
to both sides.
Q394 Chairman: We understand that
but in general terms are we talking about correspondence?
Ms Daly: As Mr Green said in evidence
to the Committee in answer to Sir Malcolm's question, he did not
think that a lot was privileged and it was evident that what he
said was correct. It was a lot of personal material, personal
correspondence, telephone bills, financial bills; it depended
what material you were looking at. Electronic material had more
political matters, like party whips saying "Be here at a
certain time".
Q395 Ann Coffey: Why would telephone
bills be privileged?
Ms Daly: I do not know. This was
what we were told was privileged. In communications between both
sources it became apparent that their concept of what was privileged
was very different from what mine would have been.
Q396 Ann Coffey: What is your concept
of what is privileged?
Ms Daly: It would have to be closely
connected with proceedings in Parliament rather than simply something
which was taken from the office of a Member.
Q397 Ann Coffey: For example?
Ms Daly: Something in preparation
for a speech which a Member was going to give in Parliament.
Q398 Ann Coffey: So a draft. If in
my office there is a draft speech that I have crossed off and
was arranging, that would be considered as privileged information.
Ms Daly: Yes; exactly. We did
identify other things which were privileged.
Q399 Ann Coffey: It is very important
to know what you think is privileged information.
Ms Daly: I have to say that Jacqy
Sharpe, being the Clerk of Journals, was the expert on what was
privileged.
Ms Sharpe: We certainly looked
at things which there would have been little argument about them
being privileged such as extracts from Hansard, written
answers, written questions.
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